Itxa/64/2012 Of The Commissioner Of Income Tax - 4 Mumbai v. S. Kumar Nationwide Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 64 OF 2012 The Commissioner of Income Tax-4..Appellant.V/s.M/s. S. Kumar Nationwide Ltd...Respondent. Mr. Vimal Gupta, Sr. Advocate with Padma Divakar, for the Appellant.Mr. Ajay Singh, for the Respondent. P.C:- CORAM: J.P.DEVADHAR & M.S.SANKLECHA,JJ.DATE : 20[th] MARCH, 2013. In this Appeal by the Revenue for the Assessment Year 2001-02, following question has been raised for our consideration:- Whether on the facts and circumstances of the case and in law, the Tribunal was justified in holding the reopening under Section 147 as invalid? 2On 16[th] March, 2004, the Assessing Officer completed the Assessment under Section 143(3) of the Income Tax Act, 1961 (the said Act) for Assessment Year 2001-02 determining the book profit at Rs.82.19 lakhs. Thereafter, a notice under Section 148 of the said Act was issued on 22[nd] November, 2007 seeking to reopen the Assessment for the S.R.JOSHI1 of 3 Assessment Year 2001-02. The Reassessment was sought to be done for the following reasons:- It is seen from the records that the assessee has incorrectly reduced the revaluation reserve from the book profit with disregard to section 115JB(1). As per the provisions of Section 115JB(1) any reserve created on or after 1.4.1997 and credit to profit and loss account shall not be reduced from” 3In this case, admittedly, the assessment for the Assessment Year 2001-02 is sought to be re-opened beyond a period of four years from the end of the relevant Assessment year. The Tribunal by the impugned order held that the book profit under Section 115JB(1) of the said Act was computed in the original Assessment order dated 16[th] March, 2004 after examining the computation of the book profit done by the Respondent-Assessee. It is also an undisputed position that amount of revaluation reserve had been shown in the Profit and Loss Account filed along with the return of Income. The reasons for reopening the Assessment do not disclose any tangible information or material on the basis on which it could be said that the Assessing Officer had formed an opinion on tangible material different from that available/disclosed earlier, has led to income escaping assessment. On these facts, the Tribunal concluded that there was no failure on the part of the assessee to disclose fully and truly all the material facts necessary for assessment. As the assessment was being reopened after the expiry of the four years from the end of the relevant assessment year, the requirement of the first proviso to Section 147 of the Act has to be strictly complied with. In this case, there was no failure on the part of the assessee to disclose fully and truly all material fact necessary for assessment, thus the re-opening of the assessment is without jurisdiction. 4As the decision of the Tribunal is based on finding of fact, we see no reason to entertain the proposed question of law. 5Accordingly, appeal is dismissed with no order as to costs. (M.S.SANKLECHA,J.) (J.P.DEVADHAR,J.)